Appendix — Weger v. California

APPENDIX A.

Opinion of the Court of Appeal. _

In the Court of Appeal of the State of California, Pees

Second Appellate District, Division Two:

People of-the State of California, Plaintiff and Ap-

~~ pellant, v. Chester W. Weger, Defendant and Respond-

ent. 2d Cr. No. 13090. . ;

Filed: June’5, 1967.

APPEAL from orders of Municipal Court; Pasadena

Judicial District, sustaining demurrer to complaint and

dismissing: action. Louis T. Fletcher, Judge. Reversed. ‘

Byron B. Gentry, City Prosecutor (City of Pasa-

dena). and David Press, Assistant City Prosecutor, for

Plaintiff and Appellant. )

Thomas C. Lynch, Attorney | General, William E.

James, Assistant Attorney General; Evelle J. Younger, a.

District Attorney: (Los’ Angeles), Harry ‘Wood, Chief,

' . Appellate Division, Harry B. Sondheim,, Deputy Dis- ~

trict Attorney; Roger Arnebergh, City Attorney, Philip

E. Grey, Assistant City Attorney and,Melvin L. Jensen,

Deputy City Attorney, as Amici Curiae -on behalf: of

Appellant. :

Allen I. Neiman, A. L. Wirin, Fred Okrand st

Laurence R. Sperber, for Respondent.

In June 1966,the People filed a complaint in the

Municipal Court for the Pasadéna Judicial District,

charging defendant with a violation of subdivision (e) |

' of section 647 of the Penal Code. The trial -court sus-.

. tained” defendant’s demurrer and ordered thé case dis-

missed. (Penal Code, § 1008.) On appeal by the Péople

the Appellate Department of the Superior Court for

« | one

Los Angeles County affirmed the judgment of dismissal

_ and certified the case. to this court.’ We ordered the

*" case transferred i in order to settle an important question

of law. Owen ED te 6, opankd Tog

The only POT before ys is the constitutionality

-of section 647, subdivision (e), of the Penal Code. That

séction provides in relevant part: “Every person who |

commits any of the following acts shall be guilty of

disorderly conduct, a misdemeanor: .. . (e) Who loiters

out apparent reason or business and. who refuses, to

or wanders upon the streets or from place to place ‘o

n

identify himself and to account for his presence wi

requested by any peace officer so to do, if the: sur-

rounding circumstances are such as to indicate to a rea-

sonable man that the public safety demands such identi-

fication.”* We are not concerned with the guilt, or, in-

nocence of defendant. We hold that’ the law is ‘con-

stitutional and that the judgment saraetes ai the action

must be reversed. |

We note at the outset that theré is “a presumption in

favor of constitutionality, and the invalidity of a legis- _

lative act must be clear before it can be declared un-.

constitutional.” (Patton v. La Bree, 60.Cal. 2d 606,

608-609.) “As pointed out in People v. Superior Court

- (1937), 10 Cal.2d 288, 298 [4] [73 P.2d 1221], ‘Ju-

dicial decisions abound with declarations to the effect

that all presumptions and intendments favor the validity

of statutes; that mere doubt by the judicial branch of.

~ ASection 647. was adopted in 1961. (Stats. 1961, ch. 560.) .

Subdivision: (e) of this section was considered in People v.

Bruno, 211 Cal.App.2d Supp. 855, and in People v. Wilson,

238 Cal.App.2d 447, and was noted. in People v. Kraps, 238

_Cal.App.2d 675. However, neither of these cases. deal with the

constitiitionality of the section. .

the government as to the validity of a statute will not

afford a sufficient reason for a judicial declaration of —

its invalidity. . . .’ [Citations.]” (Jn re Cregler, 56

Cal.2d 308, 311.) “Statutes are to be so construed, if _

their language permits, as to render them valid and

constitutional rather than invalid and unconstitutional.

(County of Los Angeles v. Legg, 5 Cal.2d 349, 353

[55 P.2d 206] ; 45 Cal.Jur.2d, Statutes, § 115, p. 624.)”

(Erlich v. Municipal Court, 55 Cal. 553, 558.) “Statutes

must be. upheld unless their unconstitutionality clearly,

positively and unmistakably appears.” (In re Huddleson,

229 Cal. App. 2d 618, 621.)

Section 647, subdivision ( e) is not

Constitutionally Vague and Uncertain

Defendant contends that section 647, subdivision

(e), of the Penal Code, is vague and uncertain and

fails to establish clearly defined standards of guilt and

_ thus deprives him and all others of due process of law.

In our opinion this contention is ‘not tenable.

The Supreme Court of the United States “has con-

sistently held that lack of precision is not itself of-

fensive to the re" uirements of due process. ‘.. . [T]he

Constitution does not require impossible standards’ ; ‘all’

that is required is that the language ‘conveys. suf-

ficiently definite warning as to the proscribed conduct

when measured by common understanding and prac-

tices... .? United States v Petrillo, 332 US 1, 7, 8, 91

L ed 1877, 1883, 67 S. Ct 1538.” (Roth-v. United

States, 354 U.S. 476, 491, 1 L. Ed-2d 1498, 1510.

1511.) “A criminal statute must be sufficiently definite

to give notice of the required conduct to one who would :

avoid its penalties, and to guide the judge in’ its ap-

4

_ plication and ‘the lawyer in defending one charged with

its violation. But few words possess the precision of

. mathematical symbols, most statutes must deal with un-

_ told and unforeseen variations in factual situations, and

‘the practical necessities of discharging the business of

government inevitably limit the specificity with: which

legislators, can spell out prohibitijns.’ Consequently, no |

more than a reasonable degree of certainty can be de-

manded.” (Boyce Motor Lines o United States () ;

, 342 US. 337, 96 L. Ed. 367, 371.) -

Similarly it has been held in this state that “The

requirement of a reasonable degree of certainty in

legislation, especially in the criminal law, is a well es-

tablished elgment of the guarantee of due process of

law. -‘No one may be required at peril of. life, liberty

or property to speculate as to thé meaning of: penal stat-

utes. All are entitled to -be informed as to what the

State commands or forbids . . . “a statute which éither

ferbids or requites the Sided of an act in terms so

vague that men of common. intelligence must neces- |

sarily guess at its meaning and differ as to its applica-

tion, violates the first essential of due process of law.” ’.

(Lanzetta v. New. Jersey, 306 U.S. 451, 453 [59 S.Ct.

618, 83 L. Ed. 888]; see also Connally u. General -

Const. Co., 262. U.S. 385, 391 [48 S.Ct. 126, 70 L. Ed.

322].) Such.also-is the law of the State of California.

(People v. MéCaughan, 49 ‘Cal.2d 409, 414 [317 P.2d

974). )” (In re Newbern, 53 Cal.2d 786, 792.)

In In re De La O, 59° Cal.2d. 128, 153, it is wnid:

“Words used in a’ statute are ordinarily to be construed —

according to the context and ‘the approved use of the-

languagé (Civ. Code; § 13), and ‘a statute is suf-

. ficiently certain if it employs words of long usage or

ati

with a common law meaning, “notwithstanding an ele- —

ment of degree im the definition as to which estimates -

_ might differ?’ (Lorenson v. Superior Court (1950)

35 Cal.2d 49, 60 [8] [216 P.2d 859].)” In People v.

Victor,.62 Cal.2d 280, 298, the court adhered to these

rules, adding at page 299 that admittedly a word as used

_in_a particular statute may be “a relevant one; but ‘the

law is full: of ‘instances where a than’s fate depends on

_ his estimating rightly, that is, as the jury subsequently

_ estimates it, some matter of dégree.’: (Nash v. United .

States (1913) 229 U.S. 373, 377 [33 > Ct. 7m 37 ,

L. Ed. 1232].)”

In short, the presence of an element of degree i in the

definition of the words used .“does not of itself : render

the statutory language insufficiently certain to comply

with due process. ‘ “Reasonable certainty is all that is

required. A statute will not be held void for uncer-

tainty if any reasonable and practical coristruction can —

be given its language.” [Citation.] It will be upheld

if its terms may be made reasonably certain by refer- °

ence to other definable sources.’ (American Civil Liber- .

ties Union v. Board of Education (1963), 59 Cal.2d

203, 218 [9] [28 Cal.Rptr. 700, 379 P.2d 4].)” (People

v. Victor, 62 Cal.2d 280, 300.) “The complexities of _

the social problems dealt with by-the Legislature ‘require

that a practical construction be given to the language

employed by the draftsmen of legislation lest their pur-

poses be too easily nullified by overrefined inquiries into

the meaning of words.” Ags. v. Vaughn, 196 Cal.

_App.2d 622, 632. ) :

‘ We turn how toa consideration of the words used in

‘the statute. In doing so we are required “to read the

statute in the ‘light of the objective sought to be ~

achieved by j it as well as the evil sought’ ‘to be iit

(Wotton v. Bush (1953) 41 Cal.2d-460, 467 [261 P.2d /

256].)” (In re Huddleson, 229 Cal. App. 2d .618, 624.) .

“Where the words have a: broad and also a. restricted

theaning, if the apparent object of the statute will ‘be

subserved by construing them in their restricted sense,

whereas a principal object would be defeated ‘by con-

struing them in their broad sense, the restricted .inter-

pretation will be preferred and the. broad- meaning re-

. jected, though the latter may be the more usual mean- |

ing. But a narrow or restricted meaning should not be

given a word: if it would result in evasion of the evident

'- purpose ofthe act, or if a broader meaning would pre-

' vent evasion and ‘carry out the purpose. ” (45 Cal.Jur.

2d, Statutes, § 140, p. 648.)

In 1961 the Legislature, after a lengthy sendy of the

problems involved (see 22 Assembly Interim Commit-

tee Reports, No. 1. (1961)) repealed former section

647° of the Penal Code and adopted section 647 in its

present form. (Stats. 1961, ch. 560.) Former section

647 soaenee: the crime of “vagrancy” as a misde-

meanor.”

In’ repealing former ,section 647 and enacting the

_ Present section, the Legislature recognized, as urged by

*Former § 647 declared that, among others, “3, Every per-

son who roams about from place to place without any lawful

business; or 4. Every person known to be a_pick-

pocket, thief, burglar or confidence operator, either by his own

confession, or by his having been convicted ‘of any such of-.

fenses, and having no visible or lawful means of

when found loitéring around any steamboat landing, railroad

depot, banking institution, broker’s office, place of amusement,

, auction room, store, shop or crowded thoroughfare, car, or

omnibus, or any public gathering or assembly; or, . . . 6. Every

_s: person « cwho wanders about the streets at late or unusual hours

- of the nigh, without, any visible or st ac aaa a Fey,

vagrant, .

7

Sey

—7— ,

the principal draftsman of the new section, that the time

had come to abandon the vagrancy concept of the form-

er section “for statutes which will harmonize with no-

tions of a decent, fair and just administration of crim-

inal justice and which will at the same time make it

possible for police departments to discharge their respon-

sibilities in a straightforward manner . .'.” In Pro-

fessor Sherry’s words, this was done “by drafting -.

legislation which will describe the acts to be proscribed

with precision and which will be free of the hazy pneum-

bra of medieval ideas of social control characteristic of

existing law.” (Sherry, Vagrants, Rogues and Vaga-

bonds-—Old Concepts in ‘Neéd of. Revision, 48 Cal. L.

Rev. 557, 567 (Oct. 1960); and see 22 Assembly In-

terim Committee Reports’ No. 1 (1961) pp. 7-19; Peo-

ple v. Bruno, 211 CalApp.2d Supp. 855, 859-860:)

“The word ‘loiter’ has been defined to mean ‘to be

slow in moving; delay; linger; saunter; lag behind’

(Webster’s New International Dictionary (2nd ed.); .

seé State v. Starr (1941) 57 Ariz. 270 [113 P.2d 356, |

357]) or ‘to linger idly by the way, to idle’ (Phillips v.

Municipal Court (1938) 24 Cal.App.2d 453, 455 [75

P.2d 548]).” (In re Huddleson, 229 Cal.App.2d 618,.

621-622.) In The Random House Dictionary of the

‘ English Language (unabr. ed. 1966) “loiter is defined

as “1. to linger aimlessly or as if aimlessly in or about

_a place: . ...2. to move in a slow, idle manner; make

purposeless stops in the course of a trip, journey, er-

‘rand, etc.” “While taken by itself and i in its broad mean- .

ing the term may carry no criminal] implications, never-

theless as employed in a penal statute arid considered

in such statutory context, it may have a. sinister, wrong-

_ ful or criminal import. [ Citations. |’ (in ve Huddieson,

supra, Pp. 622.)

4

‘ ——

‘Over the years the courts have waited and upheld’

the . constitutionality of various statutes proscribing

“loitering” in one ‘context or another. (te, e. 2.5.

Philips v. Municipal Court (1938)°24 Cal.App.2d 453;

Wright v. Munro (1956) 144 Cal.App.2d 843; Garcia v.

_ Munro (1958) 161 Cal.App.2d 425; see also Flores v.

: “Los Angeles Turf ClubgX1961) 55 Cal.2d 736:) In

_ 1961 the court in In re Cregler, 56 Cal.2d 308, upheld .

the constitutionality of subdivision’ 4 of former section’

_ 647 of the Penal Code. It was there held that the word —

_ “Toiter”\as used in the: ‘subject statute and in many other

police powef- regulations “has a sinister or wrongful as ©

well as a reasonable definite implication. As proscribed

“by the statute the word ‘loiter’ obviously connptes lin-

. gering in the designated places for the purpose of com-

mitting a crime as opportunity may be discovered.” (Pp.

. 311-312.) ‘In In re Huddleson,'229 Cal.App.2d 618,

the .court followed Cregler in sustaining the constitu-

- tionality of section 647a, subdivision 2, which pro-

vides that “Every person who loiters about any school

‘or public place at or near. which childfen attend or -

mornaally congregate is a vagrant. we x

‘We are satisfied that with the passing « of the ‘

alloyed, uncomplicated criminal character the. nee. 7

- rogue, the idle vagabond, the true vagrant,” (tenBroek, —

Family Law, Part ITI, 17 Stanf. L. Rev. 614, tats

’ we are ‘no longer required ‘to give the word. “loiter”

restricted meaning i in order’ to sustain the. sialiteiitaat

_ , ity of the statute. .As tenBroek points out, when sec- _

-. tion 647:-was repealed, recast and reenacted in: 1961,

othe name of the semagere was: changed from, vagrancy

ys disorderly conduct. ; . Mere ,roaming about from ‘¢

-_ to Place, by persons without ma means of sup-

; \

\

a

a) ay

= e

port is no longer forbidden; one must also refuse to

identify ‘himself and to account for his presence when

requested by a peace officer to do so, ‘if the surround-

ing circumstances are such as to indicate to a reasonable ~ ~ ~

man that ‘the public safety demands. such identifica-

n.’” (P. 673.) .

What we have ‘just said about the we “loiter” ap-_

plies. equally to the word “wander,”, In its broad sense

“wander” means ::“1..to ramble without a definite pur-

pose or objective; roam, rove, or stray; ... 2. to go ~

_ aimlessly, indirectly, or casually.” (The Random House

Dictionary of the English Language, unabr. ed. 1966.)

As now written, section’647, subdivision (e), does not

_ Inake- loitering and waridering upon the streets or from

place to Place without apparent reason or business with-

out more a punishable offense. As there used the words

do: not sconnote . unlawful activity. (City of Seattle v.

Drew, .:...-.- Wash.2d ........ , 423. P.2d 522,.524.) Fhey

‘ do no more than describe the person who may be asked

‘by a peace officer to identify -himself and. to account —

for his presence in the prescribed circumstances. As so |

used the words. “loiter” and ‘ ‘wander” are not so vague

~ that mén of common intelligence must necessarily guess |

at their meaning and differ as to their. application.

(Lanzetta v. New Jersey, 306 U.S. 451, 453; United.’

States v. Harriss, 347 U.S. 612, 617.)*

Defendant also contends that the statute is uncon- .

stitutionally. vague’ in that it gives’ the loiterer or wan-

derer no ) guidance as to what he must do “to ‘identify

e do not-agree, with the court in People v. Bruno, 211

L Cal. App.2d Supp. 855, 860-861, that “wandering” as used in —

Mia te 647, subdivision (e). “consists of ‘movement for evil

_ purposes,” even in the. absence of any constitutional question. ©

a

ee

es

himself or to account for his presence.” We do not

agree. ~°:

‘Here, again, we may look to the commonly accepted

_ meaning of the words. According to the American

College Dictionary, “identify” means to “establish as

being a particular person or thing; attest or prove to be

as purported or asserted. ” “Tdentification,”

to College Law Dictionary means “Proof that a person

or thing is the person or thing [he or] it is: ‘enaees

_or represented to be.” | eo

State v. Evjue, 253 Wis. 146, 33 NW 2d 305, in- |

volved a statute which prohibited the publication of

“the identity“of a female who may have been raped or

subjected to any ‘similar criminal assault. . .” ( R.

308.) In holding that the ‘word “identity” as dhidie

used'was not unconstitutionally- vague or. indefinite the -

court said (p. 309): “The word ‘identity’ is not a word

- of art in the law. ‘Identity’ is a noun and from it the

- adjective ‘identical’ is derived. Things are said to be

»identical when they are the same, -equivalent, equal.

To identify i is to establish the identity of; to prove the

same with something described, claimed, or asserted.

Identity is defined as sameness..of essential or generic

character in different examples or instances; the limit

~ approached by i increasing similarity ‘Sameness in all that

Z constitutes the objective reality. of a thing. (Webster)

With respect to persons the most common means. of

identifying them is by name, but that is by no means |

the only method which is employed. Any knowledge or

‘information which enables the recipient to distinguish }

?

. t

EI ITAL WTR OO RO ple Gh oe

according |

Be eh AER RL ACE SARTO tt NR LOT IE ET AN ING ERLE O RE LE RN ALAR TNE LEAL TN

kK

‘the person referred to affords’a means of identifica |

tion.” ee ie

_ To “account for” is‘defined in Webster’s Third New .

International Dictionary as meaning: “.-. ..to furnish

substantial reasons or a convincing explanation; make

clear or reveal basic causes.” In the context of section

647, subdivision (e), as we read it, to account for

one’s presence is, in substance, an’ integral part of the |

identification there required.®

‘While there appear to be no, cases directly in point, 3

we are satisfied that for the reasons discussed above, .

the phrase “to account for his presence” as used in

section 647, subdivision (e), is to be given its lay

meaning, and that so construed it is not constitutionally —

"vague and indefinite. (See Dominguez v. City and

_ County of Denver, ........ Colo. ......... 363 P.2d 661,

and Notes, Validity of “Satisfactory Account” Clauses

‘In Vagrancy Ordinances (Kalhr), 4 Ariz. L.Rev. 284.) ~

We do not think that United. States v. Margeson, 259

F.Supp. 256, is persuasive authority to the contrary.

More fundamentally, defendant contends “that . the

statute is unconstitutionally vague because the’ crime

o- | '

4In People v. Diaz, 174 Cal.App.2d 799, 803, it was held

_that, in the circumstances of a case in which the disclosure of

the identity of an informer was necessary toa fair trial, mere

disclosure of his’ mame without further identifying information

‘was not enough. .

5It seems clear to us that, as used in section 647, subdivision

(e), the concluding phrase, “such identification” as the public

_° safety demands refers back to the obligation imposed on the per-

0 son of whom the request is made “to identify himself and to

account for his presence.” | ? dee

—12—

for which he may be prosecuted i is dependent. on the

subject discretion of the. peace officer who seeks to in-

terrogate him. In support of this contention he relies

primarily on the concurring opinion of Justice Black in

Cox v. Louisiana, 379 U.S. 559, 575, 13 L.Ed. 487,

498, where he said that a statute is unconstitutional

_which “does not provide for government by clearly de-_

fined laws, but rather for government by the moment-

to-moment opinions of a policeman on his beat.” (379

U.S. at 579, 13 L.Ed.2d at 501; see also Shuttlesworth

v. Birmingham, 282 U.S. 87, 90, 15 L.Ed.2d 176, 179.)

We do not believe that section 647, subdivision (e),

can be so construed. In Cox v. Lousiana, 379 U.S.

536, 13 L.Ed.2d 471, the court held that, the statute

‘under which defendant had been convicted, prohibiting

obstruction of public streets and passages, was uncon-

stitutional because it vested “unfettered discretion in

local officials in the regulation of the use of the streets

for peaceful parades and meetings.”* The court said,

however : “It is, of course, undisputed that appropriate,

limited discretion, under properly drawn statutes or ordi-

nances, concerning the time, place, duration; or. manner

of use of the streets for public assemblies may be

vested in administrative officials, provided that such —

limited discretion is ‘exercised with “uniformity of

_ method of treatment upon the facts of*each application,

free from improper or inappropriate considerations and

from unfair discrimination” . . . [and with] a “sys-

‘ tematic, consistent and just’ order of treatment, with

"reference to the convenience of public use of the high-

ways... .”’ Cox v. New -Hampshire, supra, 312 US

at 576, 85 L. ed at .105, 133 ALR 1396.” (379 U.S.

at 558, 13 L.Ed.2d at 486.).

&

Section 647, subdivision. (e), permits a peace officer

to stop one who loiters or wanders upon the streets

“without apparent reason or business,” and require him

o “identify himself and to account for his presence”

_ only “if the surrounding circumstances are such as to

- indicate to a reasonable man that the public safety de-

mands such identification.” In determining the con--

stitutionality of this enactment we are required-to. read 2

' it in its entirety. So read, we are satisfied that ‘it con-

stitutionally vests appropriate, limited discretion in - :

the peace officers of this state.

- Admittedly, the provision in the original draft of the

section requiring the loiterer to identify himself and

account for his presence was conceived by the principal

draftsman to be consistent with the authority which

peace officers have long possessed in California. As

Professor ‘Sherry says in footnote 72 to his, article in

48 California Law Review at page 571: “A dictum in

the earliest case in which the private person’s responsi-

bility to respond to reasonable police inquiry is discussed

is in point with respect to the suspicious loiterer: ‘A

police officer has a-right to make inquiry in'a proper

manner of anyone upon the public streets at a-late hour

as to his identity.and: the occasion of his presence, if

the surroundings are such as to indicate to a reasonable

man that the public safety demands such identification.’

Gisske v., Sanders, 9 Cal.App. 13, 16, 98 Pac. 43, 45

(1908). Years later, the California Supreme Court

adopted this conclusion in People v. Simon, 45 Cal.2d

645, 290 P.2d 531 (1955).” Although it was held in

People v. Simon (p. 650) that the‘search there in-

volved was not reasonable in the circumstances of that

_ case, the court. was careful to point out that “There is, _

“of course, nothing unreasonable in an officer’s ques-

—14—

_ tioning persons outdoors at night [citations], and it is

possible that in sorne circumstances even a refusal to an-

swer would, in the light of other evidence, justify an

arrest. (See Gisske v. Sanders, supra, 9 Cal.App.2d 13,

17.)” The phrase, “. . . if the surrounding circum-

‘stances are such as to indicate to a reasonable man -

that the public safety demands such identification,”

' was included-in section 647, subdivision (e), as enacted

in 1961 in order to make the section “fit more nearly.

the dictum from Gisske v. Sanders, upon which it is

based.” (22 Assembly Interim Committee Reports, No.

‘1, p. 18 (1961).) — wy

In our opinion section 647, subdivision (e), confers

on the peace officers of the state an appropriate limited

discretion which does no violence to any constitutional

provision. This discretion is analogous to the dis-

cretion vested in such officers to’ make an arrest in

_ circumstances short of probable cause.

‘People v. Mickelson, 59 Cal.2d 448, was . decided in

1963. In that case the court said (at pp. 450-451):

“W]e have consistently held that circumstances short

of probable cause to make an arrest may still justify an

officer’s stopping pedestrians or motorists on the streets

for questioning. If the circufhstances warrant it, he

may in self-protection request a suspect to alight from

_ an automobile or to submit.to a superficial search for

“concealed weapons. Should the’ investigation then re-

veal probable cause to make an arrest, the officer may

arrest the. suspect and conduct a reasonable incidental

search.” At page 452, the court said: “We do-not be-

lieve that our rule permitting temporary detention for

. questioning conflicts with the Fourth Amendment. It

strikes a balance’ between a person’s interest in im-

&.

—15— ;

munity from police interference and the comninity’s in-

terest in law-enforcement. It wards off pressure to

equate reasonable cause to investigate ‘with reasonable

cause to arrest, thus protecting the innocent from the

s .

risk of. arrest when no more than reasonable investiga- _

tion is justified.” This rule was reiterated in People v.

_ One 1960 Cadillac Coupe, 62 Cal.2d 92, 95-96.

In People v. Cowman, 223 Cal.App.2d 109, we held

that it is constitutionally permissible for a peace officer

to stop an automobile for the purpose of interrogating ©

the occupants even when the officer had no preconceived

intent either to arrest the occupants or to conduct a

search of the vehicle. We there said (p. 117) that

the rationale of the decisions is “that an officer of the

law, employed to maintain the peace and to prevent

crime, as well as’ to apprehend criminals after the

fact, has both the right and the duty to make redson-

able investigation of all suspicious activities even theugh

the nature thereof may fall short of grounds sufficient

to justify an arrest-or a search of the persons or .the .

effects of the suspects. . Experienced police officers

naturally develop an ability to, perceive the. unusual and

suspicious which is of enormous value in the difficult -

task of. protecting the security and safety of law-abiding

citizens.”

The same conclusion was reached in People v. Perez,

243 Cal.App.2d 528, where the court said at page 531:

' “An officer may stop a pedestrian or. motorist for

questioning under circumstances short of probable cause

for arrest. (People v. Mickelson; 59 Cal.2d 448, 450

[30 Cal.Rptr. 18, 380 P.2d 658].) There must, how-.

ever, be some suspicious circumstance to justify even

such a limited interference with an individual’s free-

pe —16—

dom of movement. People v. One 1960 Cadillac Coupe,

62 Cal.2d 92 [41 Cal.Rptr. 290, 396 P.2d 706]; Hood

v. Superior Court, 220 Cal.App.2d 242 [33 Cal.Rptr.

782].) There is no precise formula by which it can be

determined whether an officer acted lawfully in stop-

ping a pedestrian or a motorist for questioning ; the test

is ‘. . when the circumstances are such as would in- -

dicate to a reasonable man‘in a like position that such

a course is necessary in the proper discharge of his

duties.’ (People v. One 1960 Cadillac Coupe, supra,

pp. 95-96; People v. Davis, 222 Cal.App.2d 75, 78 [34

Cal.Rptr. 796]; People v. Porter, 196 Cal App.2d 684,

686 [16 Cal.Rptr. 886].) The reasonableness of an

_ officer’s action depends upon the facts and circum-

stances of the particular case. (People v. Alcala, 204

Cal.App.2d 15, 20 [22 Cal.Rptr. 31]; cf. People v.

Ingle, 53 Cal.2d 407, 412 [2 Cal.Rptr. 14, 348 P.2d .

577; People.v. Schader, 62 Cal.2d 716; 726 [44 Cal.

Rptr. 193, 401 P.2d 665}.) A. mere hunch, without

more, that a person may be involved i in criminal activity —

“is, of course, insufficient. (People v. One _ Cadillac

Coupe, supra.)”

We are concerned here only-with the constitutionality

Of. the statute. We are not concerned with the reason-

ableness of the officer’s action in arresting the defend-

ant. Whether his action was reasonable necessarily de-

pends upon the facts and circumstarices of the case as

developed at the time of trial: (People v. Perez, 243

ne age 528; in Be v. bled 248 Cal.App.2d. ....,

The conclusion we have reached i is in accord with the

Commentary of the Reporters on section. 2.02, subdi-

-_—eoOo

SAdvence Report Citation : 248 A. CA. 358, 361.

f

Tenge © > ee) eel eg a 2 tomer =e .

| =, a

visions - (2) and (3), of A Model - Code of. Pre-Ar-

raignment Procedure, Tentative Draft No. 1, submitted

to The American Law Institute in 1966.” Section 2.02,

subdivision (1) of that tenative draft provides for the _

' stopping of persons who may have knowledge which ©

may. be of material aid to the investigation of some

crime.. Subdivisions (2) and (3) read: “€2) Stopping

of Persons in Suspicious Circumstances. A iaw en-

forcement officer: lawfully present in any place may, if

a person is observed in circumstances which suggest

that he has committed or is about to commit a felony or

misdemeanor, and such action is reasonably neces-

sary to enable the officer to determine the lawfulness of

that person’s conduct, order that person to remain in-

or near such place in the officer’s presence for a period

of not more than twenty minutes. (3) Action to Be |

Taken During Period of Stop. A law enforcement of-

ficer may require a period to remain in‘ his presence .

pursuant to. subsection (1) or “(2) of this section’

only insofar as such action is reasonably necessary to

(a) obtain the identification of such person; (b) verify ©

_ by readily available information an identification of

such person; (c) request cooperation pursuant to and

subject to the limitations of Section 2.01; or (d) verify

| by readily available information any account of his

presence or conduct or other information given by such

person.” ?

In their Commentary on section 2.02 of the ten-

tative draft the Reporters say in part (p. 93): “Some

tA fter eee discussion at the Annual Meeti section

2.02 .of the tentative draft was recommitted to the Reporters

for reconsideration with instructions that included of

_ the principle of “stop and frisk.” ei US. Law eek 2641-

2644, May 24, 1966.)

authority to interfere with liberty on less than reason-

able cause has been explicitly recognized even in the

absence of statute by the courts in a number of jurisdic-

tions, including one Federal Court on Appeals.”* As

to the constitutionality of the proposal the Reporters

say (p. 94): “Theré appear to be no compelling con-

stitutional objections to an authority to stop persons

_ briefly for purpose of criminal investigation. In the

single case that squarely raised hefore the Supreme

Court the issue of the constitutionality of such an ex-

ercise of power, Rios v. United States, 364 U.S.-253 °

(1960), the court declined to decide the question. Where

- such a power has been explicitly ,granted. by statute, it

has. been consistently upheld.® And even ‘in the

®The Reporters’ footnote to this statement reads: “5. ©

United States v. Vita, 294 F.2d 524, 529-30 (2d Cir: 1961),

cert.. denied, 369 U.S. 823 .(1962) (‘The rule [of Federal R.

Crim. Proc. 5(a)] does not apply to a case in, which federal

officers detain a suspect for a short and reasonable period in

order to question him.’) ; United States v. Bonanno, 180 F.Supp. .

71 (S.D,N.Y.), rev'd .on other gounds sub nom..United States .

v. Bufalino, 285 F.2d 408 (2d Cir. 1960); Goss v. State, -

390 P.2d 220, 224: (Alaska), cert. denied, 379 U.S. 859 (1964)

(‘when the -officer stopped the car he was doing nothing more

than conducting an investigation in response to circumstances

that aroused his suspicion’); People v. Mickelson, 59 Cal,2d

448, 30 Cal. Rptr. 18, 380 P.2d 658 (1963); People v. Fagin-

krantz, 21 Iil.2d 75, 171 N.E.2d 5 (1960); People v. Henne-

man, 367 Ill. 151, 10 N.E.2d 649 At State v. Freeland,

255 Towa 1334, 125 N.W.2d 825 (1964); People v. Rivera,

14 N.¥.2d 441, 201 N.E.2d 32 (1964), cert. denied, 379 US.

978 (1965); State v.. Zupan, 155 Wash. 80, 283 Pac. 671

' . (1920); State v. Hatfield, 112’ W.Va. 424, 164 SE. 518

(1932).”

--®The Reporters’ footnote here’ reads: “9. See Common-

wealth v. Lehan, 196 N.E.2d 840 (Mass. 1964), and authorities

cited in note 1 supra.” The authorities there cited are Cannon v.

State, 53 Del. 284, 168 A.2d .108 (1961); De Salvatore v.

State, 52 Del. 550, 163 A.2d 244 (1960); Kavanagh v. . Sten-

house, 93 R.I. (1962 174 — soraliy Wetuer’ The: Caters

368 U.S. 516 (1962). | genera arher, Uniform.

Arrest Act, 28 Va. L. Rev. 315, 320-321 (1942).

, ~ pees

~

absence sof statute most courts which have confronted

the issue have recognized the constitutional pas of

such a power.”

Claim of Privilege Against ‘Self-Incrimination

Defendant’s final contention is. that section 647, sub-

_ division (€), is unconstitutional because it/yiolates the

right of an individual not to be compelled to be a wit-

ness against himself, because it invades the right of.

privacy, and violates due process of law. We are of

the opinion that these contentions cannot be sustained. -

“The privilege against self-incrimination applies to ‘

evidence of ‘communications or testimony’. of the ac-

cused, but not to ‘real or physical evidence’ derived from

him” (People v. Ellis” 65 Cal.2d ........, , and

authorities there cited.) In Ellis it was held that “The

results of voice identification tests fall within the cate-

gory of real or physical evidence.” In People v. Sud- ~—

duth,? 65 Cal.2d -......, ......, the court. held that a

_ suspect has -no constitutional right to refuse a test for

intoxication “designed to produce’ physical evidence in

the form of.a breath sample.” In Schmerber. v. Cali-

fornia, 384 U.S. 757, 16 L. Ed.2d 908, cited in sup-

port of the rule as stated in Ellis and Sudduth, the

court held that (p. 914) “the privilege protects an ac-

cused only from being compelled to testify against him-

self, or otherwise provide the State with evidence of a

testimonial or communicative nature, and that the with-

drawal of blood and use of the analysis in question

in this case did not ‘involve compulsion to these ends.”

“The Reporters here refer to the : “authorities cited in note

supra,” quoted in our footnote 8, supra. Ese

11Advance Report Citation: 65 A.C. 571, 575. :

12Advance Report Citation: 65 A.C. 585, 588.

is oe . 2 ae a —0—

/ ‘The’court. there noted (p. 916) that: “both federal ‘and

, photographing, or 0 measurements, to write or speak for

identification, to- appear i in court,, to stand, to assume a

"distinction: which: has, emerged, often expressed in dif-

7 ad ferent ways, is’ that the privilege is a bar against. com- ”

f pelling ‘communications’: or ‘testimony,’ but. that com- .

ae Pulsion which makes a suspect or accused: the source of

| real or physical evidence’ does not violate it,”:-

Section 647, | subdivision (e), provides that a person

e: who, in the circumstances ‘there stated, refuses. to iden-_ -

ape f and to account. for ‘his preserice,. is guilty

: _ Of disorderly conduct. Defendant argues that. the es-

mJ sential’ element of the crime ‘heré defined is his’ Silence .,

when requested by the peace of ficer to speak, and .that

that the obligation to. speak imposed. on him, by the Se€c-

ms tién results in compulsory self-incrimination, in that. he ;

“ig thereby compelled “to provide the State with evidence .

| OfSa! testimonial or! comptitinicativé nature” (Sch- .

a merber. 9. California, 384 U:S: 957, ‘16 Ly. Ed.2d 908,

914), which may be used against him at his tridl for -

oe _ disorderly coniduct.”* This . ais argument is not tenable.

Ah.

no Respondent s. Rity to “Supplemental Briefs of yew

_ jer Mf the defendant is charged with the commission of another

e-. : Crin his refusal to answer may be used against’ him, or ‘an

. incrim ‘ment he made eithér with or without a

Rea Be Miranda-E scobeao warning is » .admissible—in-— evidence. The

- +«.Serime’ under 647(e)> is his not paving answered. If he had

answered there woul. presumably ‘be e under thie. sec-

tion, According even assuming arguesde a the Miranda-

: Sen . Escobedo y need | not be given “and aomming ‘that ‘silence.

. e ae * 9 . * ? ° *.

BF og? ‘ ‘ . ee | : ae

P rey ogee etal Me? r . eis. Qs

. ;-~ we

_.state*courts have usually held that it offers no protec- -

: f ‘| tion against , compulsion to’ submit | to’ fingerprinting, ,

ey ‘Stance, ‘to walk, or-to make. a particular gesture. The

% S his: tight to remain ‘silent is protected by the Fifth

- ‘Ainiendment. To: put it otherwise, his’ contention is ~

uriae counséb, say : “The. question under 647(e) isnot wheth- .

—_—-——-

-s

clita

, Pa we read. the authorities, section 647, subdivision

' (e), cannot: be construed as requiring the person in-

terrogated by the-peace officer to be a witness against”

himself. While it is true that he may be found guilty

of disorderly conduct if. he remains-silent, “The silence at

. here is mere nonassertive conduct ; it is not a declaration —

but a failure to offer an explanation, under circum-

% stances which call for one.” (People Vv. Wilson; 238

| Cal.App.2d 447, 456, pet. for hearing in Supreme. Court

denied. ) It was held in Wilson that evidence of defend-

_ant’s silence \ was admissible. in he later prosecution for

. burglary. ee.

In affirming the conviction in Wilson the ¢ court, at -

. . page 458, took note of the rule, as stated in People v.

\» Simon, 45. Cal.2d 645, 650, that “There is, of course,

“nothing unreasonable in an officer’s questioning . per-

sons outdoors at ‘night [citations], and it is possible

that . in some circumstances even a refusal to answer

~ would, in the light of other evidence, justify ‘an ar-

rest. [Citations.]” Then, after quoting section 647,

subdivision (e), as enacted in 1961, the court said:

“If there is such a right to interrogate, the results of

such ‘interrogation: should. be available where they re-

flect conduct on the part of the defendant which tends

.to establish his guilt unless there is a supervening policy

of the law which prevents the use of the. conduct or -

statements of the accused.” The court found that

there was no such supervening policy.. In reaching this

conclusion the court said in part (p. 459): “Circum-

”. or a statement iol be used- against the defendant were he

prosecuted for a different crime—the one, presumably for

which the stopping and questioning was done—that still is no —

basis for it bei a crime not to have answered. If a state-

ment-is voluntarily made, that is one thing. But hee a state-

' ___. mefit is not made, that is quite another.” —

nearer cence ene mcaeeaemmmaeaeaesamamaamaeaaeamaaamammmaaaaetmeasnma aime aaaaammaaaaemeamaaemaeaaaranemmaenemmmmenaeneet

stances may be imagined where answering the type of

question “here involved ,would violate “the . provision

against self-incrimination which has’ been, extended to

nontestimonial compulsion. (See People v. Dorado,

supra, 62 Cal.2d at p. 352; applying Escobedo. v.

Illinois (1964) 378 U.S. 478. [84 S.Ct. 1758, 12 L.Ed.

2d 977]; and People v. Stewart, supra, 236 Cal.App.2d

27, 30.) Dorado, however, recognizes: ‘Nothing that ;

we have said, of course, should be interpreted to re-- __

strict law enforcement officers during the investigatory

‘ stage from securing information from one who is

later accused of the crime or from obtaining answers to

“their questions.’ (62 Cal.2d at p: 354.) So here appears |

\ a second distinction between ‘the factS Of this case and

those of Dorado, Stewart and De. Leon [236 Cal.App.

2d 530]. The circumstances ‘here reflect that. at the

time the preliminary questions were asked the officers

did not know what crime, if any, had been committed. |

The questions were not designed to elicit incriminat-

ing statements, but to afford the defendant an,op- —

porturtity to explain his presence and actions.”

-, . Ie<ie glo suggested that when a person is inter-

togated by a peace officer under the circumstances de-

lineated in section 647, subdivision (e), the peace of- C

ficer is required to advise him of his right to remain no

silent in accordance with the rules stated in~Viranda v.

' Arizona, 384 U.S. 436, 16 L. Ed.2d 694. This sug-

gestion ignores the explicit holding of Miranda. (16 L.

_ Ed: 2d 725-726) that the principles there announced

“deal with the protection which must be given to the

_ privilege against. self-incrimination when the individual

is first subjected to police interrogation while in cus- |

tody at the station or otherwise ties of his freedom

a

° . . —— \ ¢

of action in any significant way. ... Our decision is

not intended hamper the traditional function of |

police officersin investigating crime. See Escobedo v.

Illinois, 378 US 478, 492, 12 L ed 2d 977, 986, 84 S

Ct 1758. When an individual is in custody on probable

cause, the police may, ofcourse, seek out evidence in

the field.to be used at trial against him. Such investi-

gation may include inquiry of persons not under re-

straint. General on-the-scene questioning as to facts

surrounding a crime or other general questioning of

citizens in the, fact-finding process ‘is not affected by

our holding.. It is an act of responsible citizenship for

individuals to give whatever information they may have ~

to aid in law enforcement. In such situations the com-

| pelling atmosphere inherent in, the process of in-custody

interrogation is not necessarily. present.”

There is no need to extend this opinion with a dis- —

cussion of the myriad cases in which the rules stated in

. Escobedo, Dorado and Miranda have been discussed, dis-

tinguished and applied. It is enough to note that

we have found none which hold that a person stopped

for interrogation by a peace officer in the circumstances

set forth in section 647, subdivision. (e), where there

is no probable cause for arrest and there is no arrest, is

in “custody or otherwise deprived of his freedom of

action in any significant-way.” (See Graham, What is °

“Custodial Interrogation?”? 14 UCLA LL. Rev. 59,

78-92; People v. Arnold,” 66 Cal.2d ........ eRe 2

If we are correct ih our conclusion that the silence of

a person who is stopped for interrogation as provided

\

a decision in one of these cases, People v, Cotter, 63.

Cal:2d , was vacated April 20, 1967. See Minutes, p.. 3,

in 66 A.C., No. .

‘ Advance Report Citation: 66 A.C. 449, 459 (6).

—24— |

in section 647, “subdivision (e); is “nonassertive con-

duct” which does not fall within the ambit of the Fifth

Amendment, it follows that the interrogation there pro-

vided does not constitute an unconstitutional invasion

of his privacy. ( Peaple v. Ellis* 65 Cal.2d ........

didi : ;

In’ short, we have found no sisthority to to sustain the

contentions that one who loiters or wanders upon the

__ streets or from place to place, without ‘apparent reason ’

or business has a constitutional right to remain ‘silent

when the surrounding circumstances are such as to in-

dicate to a peace officer as a reasonable man that the

_ public safety demands that he identify himself. .As the

-* court said itt People v. Machel; 234 Cal.App.2d 37, 43,

the “California rule permitting temporary detention for

questioning “strikes a balance between.a péfson’s in-«

terest in immunity from police interference and the

community’s interest in law enforcement. It wards off

pressure to equate’reasonable cause to investigate with

reasonable cause to arrest, thus protecting the innocent

from .the risk of arrest when no gore than reasonable

investigation is justified.’ (People v. Mickelson, supra,

59 Cal.2d at p. 452.) -While it is operative under cir--

cumstances short of probable cause to make an arrest

(People v. Mickelson, supra) ‘nevertheless. there must\

. exist some suspicious or unusual circumstance to a

-thorize even this limited invasion of a citizen’s privacy.’

(Hood v. Superior Court (1963) 220 Cal.App.2d 242,

245 [33 Cal. Rptr. 782]; People v. Cogman res) cfs

223 Cal.App.2d 109, 116 [35 Cal.Rptr. 528].)”. Sec

tion 647, subdivision (e), is fio more than a codification

of that: rule. (People v. Wilson, 238 Cal:App.2d 447,

458.)

~ Advance tit hin: 65 A.C. 571 ae aes

a

| _ =

In our opinion section 647, subdivision ‘(e), of the

- Penal Code as enacted in 1961 is constitutional.

The order dismissing the coniplaint is reversed...

| McCOY, J. pro tem.*

6

| a es it

I CONCUR: . |

The Los Angeles Cotinty Bar Association has as its

motto a saying of Theodore Roosevelt that “Every man

owes some of his time to the upbuilding of the pro-

fession to which he belongs.”-'-I think a comparable

duty rests on the citizen at large of whom it can be

said, “Every citizen owes some. of his time to the

tranquility of the society to which he belongs.” The

_ legal duty of the citizen to assist public authority in

preserving the peace has been firmly established for

hundreds of years and is manifest in such obligations _

as the duty to assist the posse comitatus, to join the

_ hue and cry, to expose treason, and to disclose the

‘commission of known felonies to proper authority.’

®, (Gov. * Code, §§ 26600, 26602, 26604; Pen. Code

~ -§§ 38, 150, 839; 18 U.S. Code, $§ 4, 2382.)

*By assignment of the Chairman of the Judicial Council.

“Ever since the days of hue and cry, it has been the duty —

of a man, who knows that a felony has been committed, to re- |

port it to the proper authority so that steps can be taken to ap- .

prehend the felon and bring him to justice. In the thirteenth

century it was his duty ‘to raise hue and cry,’ that is to say,

he had ‘to report to-the’ sheriff of the county or his officer

or tothe constable of the town: whereupon it was the duty

of that officer to levy hue and cry, that is, to shout aloud

_€alling on all able-bodied men over the age of 15 to pursue the .

&. offender and arrest him: arid it was their duty to join in the

(This footnote is continued on the next page)

a.

~—/

I think it well within the scope of ‘this sit to re-

quire a citizen to identify and account for his presence

to ‘public authority — che is abroad at 2:30 in the

morning ‘under circumstances where the public safety.

"demands such identification. In so doing the citizen °

makes-a positive contribution to the tranquility of the

neighborhood by releasing a peace officer for the per-

formance of his.duties elsewhere.

This duty to identify and account I find. substantially

similar to the duty of a motorist on the highway to

identify himself and establish his right’ to be on the

highway, to demonstrate his condition to exercise that

right safely, and to report accidents involving property

damage, personal injury, or “death. (Veh. Code,

.§§ 12951, 20002, 20003, 20004, 40302, subd- (a),

2804.) It-is comparable to the duty to identify and ac-

count which we fulfill_at the demand of the building

superintendent when we enter our office late at night,

which we satisfy at the demand of customs and immigra-

tion inspectors when we return from overseas, which we

carry out at the demand of the. Director of Internal

Revehue when we file our income tax returns. These

pursuit.” (Lord Denni , Sykes v. , Director of Public Pros-

ecutions, [1962] A.C. iB, 555.)

“1612. Sir Francis Bacon, in the Chicas of Shrewsbury’ s

Trial, 2 How.St.Tr. 769, 778: “You must know all subjects,

without distinction of degreés, owe to the king tribute and serv-

» ice, not only of their deed and hand, but of their outa

and discovery. If there be anything ‘that imports the king’s.

service, they ought themselves undemanded to impart it; much

more, if they be called and examined, whether it be of their

own fact or of another’s they ought to make direct answer.’ ”

(8 Wigmore on Evidence (3rd ed.) § 2190, p. 60.) -

&

—2/— : ee

inquisitions, ‘oral and written, sometimes | inconvenient, - .

sometimes vexing, are part of the price we pay to in-

sure domestic tranquility and promote the general wel--

fare. | | Loy

| The‘theory that one owes no duties to one’s neigh-

bors and is under no obligation to.render even small .

‘assistance to the public order by identifying and ac-

counting for oneself and thus releasing a peace officer

for other work, derives from the exaggerated and ex-

treme individualism of another era, an individualism -

reflected in the statement of a Vanderbilt, “The public

be damned,” and similarly reflected in the strictures of a

Proudhon. against all government? The theory is es-

sentially anarchistic and hostile to all law, and it implies

that the, relationship of the citizen to public ‘authority

is comparable to that of the inhabitants of a conquered |

province to an’ army of occupation, who recognize no-

legal obligations owed to their temporary masters and

whose relationship with them is based entirely on force.

‘But in a society based on law the pure theory of in-

dividualism must defer to a reasonable accommodation

"@

“To be* governed is to be watched, inspected, spied on,

- regulated, indoctrinated; preached® at, controlled, ruled, cen-

sored, by persOns who~have neither wisdom nor virtue. It is

every action. and transaction, to be registered, stamped,’ taxed,

patented, licensed, assessed, measured, reprimanded, corrected,

frustrated. Under pretext of the public good’ it is to be ex-

ploited, monopolized, embezzled, robbed and then, at the least

protest or word of complaint, to. be fined, harassed, vilified,

beaten up, bludgeoned, disarmed, judged, condemned, im- ~~

prisoned, shot, garroted, deported, sold, betrayed, swindled, |

. deceived, outraged, dishonored. That’s government, that’s its

justice,- that’s its morality.’” (Pierre Proudhon, quoted in

Tuckman, The Proud Tower, p. 65.). 5

between private privilege and public interest. When the

public safety reasonably demands identification at 2:30

in the morning, the citizen has no > constitutional right

to remain anonymous.

* With respect to that provision of. the Fifth ‘Amend-

ment which states that no person shall be compelled

. in any criminal case to be a witness against himself,

its definition of a criminal case has never been extended _

to include general investigation. (People v. Perez,> 65

Cal.2d ....:..., .....:) The position of a person under

general investigation is comparable to that of a witness

before any judicial, legislative, or administrative of-

ficer. If the witness feels that answers te questions

put to him will tend to incriminate him he may claim |

the privilege against self-incrimination. If the privi-

lege has been well claimed, he is entitled to remain

silent. (United States v. Burr, 25. Fed.Cas.No.

» 14692(e), (Marshall, C.J.).) But until the privilege

has been validly claimed, his civic duty to identify and

account continues in force. (Sullivan v. United States,

274 U.S. 259, 263-264 (Holmes, J.) ; Communist Party

_v. Control Board, 367 U.S. 1, 105-110 (Frankfurter,

J.):) 3

- I conclude that Penal Code, section 647, subdivision

(e), draws on civic duty without unduly infringing

individual right, and is therefore constitutional.

FLEMING, 4.

s”

®Advance Report. Citation:.65 A.C. 761, 768-769.

. = 3

. IDISSENT: © | sig

Despite my very strong desire to ‘support and sanction

_ any and all constitutional provisions of law reasonably

, designed to strengthen ‘and i increase the effectiveness of

oe enforcement officers in the performance of”

their exceedingly difficult work of detecting and pre-

venting crime in, this age-of increasing lawlessness, I

feel obliged to dissent and’ this. for two major reasons.

First, I am persuaded that the judges of the trial

court and of the appellate department were correct in

their holdings that the law here in question is’ uncon-

stitutional. In the circumstances of this ‘case~I deem |

it unnecessary to repeat or set forth herein the reason-

. ing of the decision of the appellate department. Suffice _

it here to.say that: in the light of established principles oa

of. constitutional law, I ‘believe that this statute will be

held incompatible with the dictates of: the Fourth -and

Fifth Amendments to the federal Constitution.

ee, I apprehend that even if this law were not

vulnefable to attack on constitutional grounds, its opera-

tion in the context of the entire complex of constitu-

tional principles which have been enunciated by the -

Supreme Court, of the United States in recent times

would entail results more harmful than beneficial to

the aims of effective law enforcement.

For example, it would appear that statements given

by an apparent “loiterer” in Tesponse even to “normal |

| investigatory questioning”? might be deemed to have aie

ICE. People v. Perez, 65 A.C. 761, 768.

—30—

been given under penal compulsion and therefore inad-

missible in a subsequent prosecution of the “loiterer”

for the murder or the robbery which the officers were .

seeking to solve when they anaifomes their proper in-

vestigatory questions.”

I am unable to agree with the view of my colleagues

‘that section 647, subdivision (e), “Gs no more than a

codification of [the] rule” sanctioning the propriety of

police action in temporarily detaining citizens and ques-

tioning them in circumstantial situations in which such

police action appears reasonable. (CE. People v. Mickel-

_ son, 59 Cal.2d 448, 450; Hood v. Superior Court, 220

|. Cal. App.2d 242; People v. Cowman, 223 Cal.App.2d':

109; People’v. Bird,’ 248 Cal:App.2d ........ ) As au-

thor of the opinions in Hood, Cowman and Bird, I am

obviously in complete accord with the law therein enun- |

ciated. If section 647, subdivision (e), were no more , .

than a codification of presently accepted decisional law,

there would be no compelling need for the enactment

_ of this statute. As I have indicated, I fear that the

effect of section 647, subdivision (e), would not be to

augment or strengthen but rathér to jeopardize the ef--

eae fectiveness of the present rule which sanctions investi-

gatory questioning.’ :

HERNDON, Acting ¥ de

2Cf. ‘Garrity v. New Jersey, ........ U.S. ....... 17 L. Ed. 2d

562; and Spevack v. Klein, ........ USS. ........ 17 L. Ed.2d 574,

%Advance Report Citation: 248 A.C.A. 358. .

| 31

AN Modification of Opinion. |

In ‘the Court of Appeal of the State of California, |

Second Appellate District, Division Two.

People of the. State of California, Plaintiff and Ap-

pellant, v. Chester W. Weger, Defendant and Respond-

ent. 2d Cr. No. 13090.

Filed: June 23, 1967.

THE COURT:

-. Good cause appearing y therefor the opinion filed June

5, 1967, in the above entitled cause is modified by the

Court on its own motion as follows:

‘The sentence’ beginning at the bottom of page 18 of

the opinion as filed, reading: “This discretion is

analogous: to the discretion vested in such officers to

make’ an arrest in circumstances short . of probable. -

cause,” is’ deleted, and the following sentence is sub-:

stituted therefor: “This discretion is ‘andlogous to the

discretion vested in such officers to Stop pedestrians or

~ motorists on the streets for questioning under circum-—

stances short of. probable cause to make an arrest. “eae

9

a)

; APPENDIX B.

Mernorandum Opinion and J iinet:

‘Appellate Department of the Superior Court, of the

State of California for the County of Los Angeles.

People of the State of California, Plaintif f and Ap- |

pellant, vs. Chester W. Weger, Defendant and Respond-

-

ent. Superior ‘Court No. CR. A 7128. Trial Court No.

M 79160. |

‘Appeal by People from ‘hcaak of “Sienaéeal at the

_ Municipal Court of the Pasadena Judicial District, a

Louis T. Fletcher, Judge. nt ee ?

Af firmed. | | :

For Appellant—Byiron B. aaiow City silane =!

*. 2) ee ‘Respondent—Neiman and Sieroty and Wirin,

-Okrand and Sperber by Allen I. Neiman, Esq.

The People appeal ‘from a judgment of dletniegal en-

tered after respondent’ s general demurrer to the com-.

. plaint was sustained with leave to amend. and the People

. declined to amend. The trial court dismissed the com-

plaint on the ground that Penal Code Section 647, sub- ©

‘section (e); upon which the complaint was mages, ig un-

constitutional.

' The respondent was ; not in jeopardy, and the right of

the ti to appeal is: unchallenged. |

| - Introduction

Penal Code Section 647 (e) is unconstitutional.

To construe the statute and to understand “why, °

upon any construction proposed, the statute is uncon- -

stitutional requires a review of the background of. the -

statute, including the. law of -yagrancy which was its

: oes . . se : | : } >»

. initial source, the evolution. of stop-and-inquire laws, —

"and tthe legislative history which precedes its adoption.

The ‘threads from which the Statute was woven are -

long and in -some respects. tangled. We begin with

the history of vagrancy and add each strand as it ap-

peared historically ‘to reach our ultimate decision on

constitutionality.. _ i eee ree ,

Penal Code Section: 647 (e), as enacted in 1961,

_ provides that every person is guilty of disorderly con-

| _ duct, a misdemeanor :. eee ae eet

: _“[W]ho [1] loiters or wanders upon the streets or |

pease , from place to place without apparent reason or busi-

ness and [2] who refuses to identify himself and

to account for his presence when requested by any

peace officer’so to do, [3] if the surrounding cir-

cumstances are such as to indicate’to a’ reason-

able man that the public safety demands ‘such’iden-

tification.” [Bracketed ntimerals added.] . -

Each of the three icles clauses of Section 647 (e)

was drawn from a separate source, and each has .a

lengthy history. The first clause is a restatement of the

ancient crime of vagrancy; the’ second clause was

drafted by Professor Arthur Sherry ; the third clause

was added by a subcommittee of the Assembly Interim

Committee on Judiciary. Ks

The History of the Vagrancy C lause:

“Who. Loiters or Wanders Upon the Streets or

From Place to Place Without Apparent Reason

or Business? < Sas ea si. ieee

1The 1961 version is the present Statute added Stat. 1961,

‘¢. 560, p. 1672, as amended Stat. ‘1965, c. 1959, p. 4487.

The genealogy of vagrancy is easily traced. Vagrancy

laws were initially enacted in 14th century. England to

holster the crumbling feudal system by confining work-

ers. to defined areas, and were later expanded to: in-

clude a motley collection of persons whose status society

did not admire and whose way-of life was believed to

“dispose them toward commission of other. crimes.”

Vagrancy was a crime of inaction—a crime of personal

‘status, condition, or repute. A vagrant was defined in :

bcions of ordinary usage but. illusive meaning, such’ as

“common prostitute”, “common drunkard”, “tramp”,

“idler”, “associate of known thieves”, “wanderer who .

_ cannot give a good account of himself”: _ The elasticity

of the-labels permitted punishment of widely diverse

persons for different purposes. The durability of

‘ vagrancy: is explicable, not by reference to rempert ac-

corded the ‘substantive elements of the crime,* but by

the tenacious efforts of law enforcement agencies,

usually .supported red the. judiciary, to preserve the -

2Sherry, “Vagrants, Rogues and Vagabonds—Old Concepts + m

‘Need of Revision,” 48 Calif.L.Rev. 557 (1960); Lacey, “Va- .

-and--Other Crimes .of Personal nal_ Condition, ” 66 Harv.

grancy

L.Rev. 1203, 1206-07 (1953). an

8E.g., Sherry, op.cit.supra, 48 Calif.L.Rev. at 558-61; ‘Lacey, .

op.cit.supra, 66 Harv.L.Rev.. 1203, 1218-19; Foote, “Vagran a

Type Law. and its Administration,” 104 -U.Pa.L,Rev.

(1956) ; Atnold, “Law Enforcement—An Attempt at Social

Dissection, ” 42 Yale L.J. 1, 9 (1932); Note, “Who is a Va-

grant in California?” 23 Calif. L.Rev. 506, 511 (1935).

‘Substantial inroads have beén made on status iii

E.g., In re Newbern (1960), 53 Cal.2d 786, holding the “com-

-mon drunk” provision of the former California cy

Apia unconstitutionally vague. See also Robinson v._Califor-

ia (1962) 370 U.S. 660, striking down that part of Calif.

: Health & Safety Code § 1711 making punishable the status of

drug addiction; Lambert v. California (1957) 355 U.S. 225,

229, invalidating an ordinance penalizing mere presence in the

Lie city of a person with undesirable status unaccompanied by

active conduct on the part of the defendant.

oe

FREON RE LEGA PRO IISLSRETR EGET! LEI IP LMP LP eh Ei tate eg

\

| ee 7

‘products of vagrancy which have long been found very

useful. Prominent among the by-products of vagrancy

have been these: (1) ‘vagrancy arrest for the ‘purpose

of obtaining custody of one who could not be lawfully

arrested for the offense of which he was ‘suspected,

"either because the officer did not have probable cause

to believe the suspect’ had committed a felony, or be-

cause the suspected crime was a misdemeanor committed

outside the arresting officer’s presence (2) vagrancy

arrest as a prelude to a conviction upon an offense less

difficult to prove than a more Specific crime of which:

‘a defendant was. suspected ;* (3) vagrancy as a lesser

offense to which a defendant could plead to avoid the

harsher penalties or stigma attached to more specific

crimes, particularly in the area of sexual offenses “J ven,

(4) vagrancy arrest as the means of validating searches

and seizures and thus permitting the fruit of such

searches and seizures to be introduced in a subsequent

Prosecution for a felony for. which Officers, at the time

of arrest, had insufficient evidence to constitute. prob-

able cause to arrest; and® (5) vagrancy arrest, or

vagrancy by testifying: “On this morning I was notified that

this pid and Mack had beat up a man by Officer Ryan and

I says: ‘Well, the only thing we can do—we didn’t see it’ ‘we

will go and vag them.’” And see discussion, LaFave, “Arrest:

The ome to Take a Suspect into C. ustody,” pp. 354. et seq.

(1965);

°E.g., Lacey, Op.cit.supra, 66 Harv.L.Rev. at 1213-15, 121g.

19; Arnold, op.cit.supra, 42 Yale L.J. at 9." .

"Ibid: fi ; ;

8E.g., LaFave, Op.cit.supra, pp. 358-59,

If the arrest® for va cy is an obvious subterfuge to se-

cure evidence of a different offense, an appellate court .may

nevertheless hold the fruit of an accompanying search and

(This footnote is continued on the next page)

ie

——

| Be - —36—:

arrest and release, to. legitimate temporary restraint, in-

quiry, and superficial search, in jurisdictions in which

these procedures are not other wise specifically author- .

ized, or are forbidden.® : 3 Cave

- Weare primarily cullcérsied with the fourth and fifth

by-products of vagrancy.

Constitutional and statutory limitations aS, arrests a

searches and seizures narrowly . circumscribe law en-

; forcement officers’ activities in investigating and pre-

venting crime. The problem is how. to strike the ap-

propriate balance between the interest of the individual

in being free from any personal restraint and from

police ‘prying and the interest of society in protecting

itself from antisocial conduct by giving law enforce-

ment officers the necessary latitude to apprehend crim-

inals and prevent crime. The interest of the individual

in freedom of his person is of such compelling force

that deprivation of that freedom by an arrest has long

been subject to stringent’ regulation. _At_comrhon_law

_peace officers could arrest without a warrant only for

those petty offenses involving a breach of. the peace

occurring in their presence or for those felonies com-

mitted outside: their presence upon probable or reason-

able cause to belitve that the person arrested had com- .

mitted a felony." The common law rules, with some

seizure: violative Hey ie Calor 2a Amendment. E 9: People. v.

— Wilson (1956) 1 145 Cal.App.2d 1, 5. The court’s discussion

of ‘the point is dictum, however, because the court found the

evidence also inadequate to arrest for vagrancy. See also

People v. Harris (1956) 146 Cal.App.2d 142, 145-46, .

%E.g., . . LaFave, op.cit.supra, pp. 354-359 ; , Note, “Use of

Vagrancy-T ype Laws for Arrest and Detention of Ss uspictous

| 10% g., Perkins, “The Law of ‘Aerial’, 25 Iowa L. Rev. 201

(1940).

a om : tore COORD ANIME lle PO ace Pie OE Noe * ceremony

° * oe “ . ‘

modification, shave been codified -in many jurisdictions,

including California: how dary didettshy

~ “Reasonable clause” is a term of applied art in the law —

of arrest. and the law of search and seizure.* The -

term defies comprehensive definition, but by any ac-

cepted ‘definition excludes mere suspicion.” The re-.

-Strictions upon the law of arrest il] suit the use of arrest

for a specific crime as the basis for detaining and

questioning suspicious persons ‘for the ‘purpose of in-

_vestigating an unsolved crime or of preventitig future

crime. 45 y . ae

A variety of approaches has been used and proposed

to provide a supportable foundation for detaining and

questioning suspicious Persons." Of these ‘the most

“California Penal Code Sections 834-51 embody the Thi

Davies :(1952) 38 Cal.2d 315. The re was reiterated in

99. It is: at Jeast acre

States (1948) 333 U.S. 10. An arrest gannot be. justified by

' What is turned up by-an exploratory search. Rios y,: United

oon ae 364 U.S. 253; People v. Brown (1955) 45 Cal.2d

| cluded. in a. subsequent criminal prosecution of the person

_ illegally searched. g., Mapp v. )hio (1961) 376° U.S. 643; -

cee discussion of the Uniform Arrest Act, the New York

'“Stop' and Frisk Act”, and the Model Code of ‘Pre-Arraign-

ment Procedure, infra. | di ot, ; ee

a

eee 38 Z

venerable is the vagrancy statute making. socially un- —

desirable status, unaccompanied ‘by affirmative acts, ‘a

crime, or making equivocal conduct, not itself amount-"

ing to any other specific offense, a crime. If the crime

is thus defined in language of '_substantial flexibility,

_ reasonable caus¢ to arrest “for. that crime becomes

equally flexible; Permitting . law enforcement officers z

| ‘to arrest ¢ on little more than suspicion. . i

_ Suspicious loitering: a status offense, was a feature

of California’s vagrancy statute from 1855, when the

. first vagrancy ‘law was adopted, until the statute was

rewritten in 1961. Clause [1] of the present code

section was drawn directly from subsections 3 and 6 of |

former Penal Code Section 647, which, respectively, de-

‘fined as’ a vagrant “every person who roamis about

eres place to place without any lawful business ;” and

“every person who wanders about the streets at late or

unusual hours of ‘the night, without any visible or law-

- ful businéss.”% - teak

Professor Sherry initially drafted both Clauses [1]

: and ‘[2] in 1958 at the request of the ‘subcommittee

of the Assembly: Interim Committee -on Judiciary. As-

sembly Bill 2712, introduced in the 1959 legislative .

Session, embodied some of the Provisions: of ‘Professor:

~"38Cal, yy ae 1855, ¢ 175, p 217. Amendments were minor in

the years 1855 to. 1961, other than the “addition of

narcotics addiction in 1929 and its ‘subtraction in 1939. ° .

agp Arthur Sherry, who drafted both Clauses .[1]

and [2]; explained that Clause [1] was “designed to replace

subdivisions .3 and 6° of the present code section by providing

a more specific description of the kind of, suspicious person

that the police are bound to deal with.” Sherry, Op.cit.supra,

*48 Calif.L.Rev. at 571. af

| As a comparison of the language between Professor Sherry’s

Clause and the former code sections. ‘reveals, Clause ,[1] is

merely an amalgamation of the prior two -sections, it is

eamueeh apace Geka He spetsions:

lle

: Sherry’s vagrancy, proposal, but conspiciously omitted

the Provisions embodied in: his Section 5,. which :then © a

consisted only of Clauses [1] and [2]. The bill was

vetoed by the Governor.”

Professor Sherry’s draft was taken up again in the

1961 legislative. session. Criticism of the status fea-

tures’of the vagrancy laws was unabated. The draft

"was referred to the. Interim Committée on Criminal

geeky

"Procedure, and that Committee, in its ‘report to the

‘Legislature, made explicitly clear that the bill as recom-

mended by it, was intended to eliminate stattis of- .

fenses."* . The Committee was equally explicit that,

in adopting Clauses [1] and [2]. from the Sherry draft

and its addition of Clause [3]; it did Not intend .to _

legitimate arrests based upon suspicion.” ae

LZ

In a letter, Governor Brown expressed his reasons for

vetoing the bill, saying, in part: : sik ®

ee sympathetic to the overall purpose of the bill

which .was to punish individuals only for wrongful actions

and not simply because of their status. But I found. that in

accomplishing this laudable objective the proposed legislation

‘unfortunately removed from police control certain dangerous

conduct, regulation: of which is nécessary in the public interest,

“The bill proposed to repeal subdivisions 3. and 6 of the

present law without substituting any kiseb ofgcontrol over those

whosé conduct. afforded occasion for legiti le, suspicion. I am

aware that police action in this regard ‘Has

effective if it gave some definition of authority and .obligation

» to which the private citizen and the policeman could ‘reasonable

[sic] and fairly conform. .. .” 22 Assembly Interim Committee

Reports No.1, pp. 11-12 (1961). ut

4822 Assembly Interim ‘Committee : Reports No. 1. (1961).

The Committee finds that Section 5, as proposed by

- Professor Sherry, ‘would lend golor of law to arrests. based

upon suspicion. It would invite a double standard of justice

. and leave too much discretion in the hands of the arresting offi-

cer. When probable cause exists, the officer may arrest without

benefit of this section. Where probable cause does ‘not exist, ‘it

would be better that no arrest Be made.” Id. at page 17. : Me

_

as. led to criticism,.

“and I agree that the present law should be revised. But I do

not think that the possibility of abuse . justifies completely

denying any controls. at all. islation in. this area would’ be .

. fe

Tee oe

pl Hisiory of Clouse 2]:

“Who Refuses to Identify Himself and to Account |

for: his Presence W. hen ba sat coaet by « Any Peace

_ Officer So Tot Do”

~ Clause [2] is Professor Shore's original contribu- a

| tion to the statute. ‘He Tenet the purpose of ‘the }

" clause as follows: . i) oy |

| _ At the heart of the problem here-i is 5 the eal

desirability of stating the terms of police author-

ity in, such a way-as to minimize abuse without

.

impairing the ability to take. necessary action.”

To write any law. in. complete accord with this

standard is probably impossible but this is not a

valid argument for simply denying the. policy

‘ [police sic] power to take any action’ with respect

to the ‘suspicious person.’ The draft. attempts

~ to spell out the limits of the policeman’ Ss: authority os

and to declare ‘some obligation on the part of the.

‘citizen to mt = himself when his loitering

$ arouses suspicion.” :

Footnote 72 states: 5

“The ‘provision in the draf: t r equiring ‘the Susp

: CUOUS. loiterer to identify himself and to explain the. =

_ reqgon for his actions upon the request. of a "peace

officer is consistent with the authority which such

' officers have long possessed im California. A dic-.

| tum in the édrliest case in which the private per-

: son’s Jini cencignd to: sont to ‘reasonable pee e

3 a

A inquiry. is ltsctinsil is in point with, respect to the

suspicious lojterer :, ‘A police officer has a: tight to Hoe.

_ make i inquiry in a proper manner’ ‘of anyone upon

. the public streets at a late hour as ‘to his identity. .

and the occasion of his presente, if the surround- —

ings are’such as to indicate to a reasonable man

that the public safety demands such identification.’ ‘e

_ Gisske v. Sanders, 9 Cal. App. 13, 16, 98 Pac. 43,-

“45° (1908). Years fater, the California Su-

premeé Court adopted this conclusion in People v.

- an illustrative suspicious person case and a use-

-< Simon, 45-Cal.2d 645, 290 P.2d.531 (1955). For

‘ful summary of the law, see. People v..West, 144 -

Cal. App.2d 214, 300 P.2d 729 (1956)."* [Em-

phasis added. ]

Clause C 2] was “consistent” with existing California

j authority i in a Pickwickian sense only. | To understand’

why this is so, it is necessary to review- the authority .

upon which he relied. | |

' The-case of Gisske v. S anders was a civil action for °

* damages: for false i imprisonment. _ Defendant police of-

ficer received a report that a: suspicious person was in

_ the. vicinity: of the city in which shortly before there ;

had been: both a burglary and a highway ‘robbery.

_ About - 11 p.m. defendant accosted the plaintiff, who.

. was walking. along the street, and asked him where he

was going and where he lived. Plaintiff answered, ‘but

queen, the officer’s right to make the i inquiry. De;

2174. at 571. i 6:

9 Cal.App. 13 (1908). ,

fendant was apparently dissatisfied with plaintiff’s an-.

swers and invited plaintiff to the station. Plaintiff

willingly accompanied: the defendant to the station,

where he was searched, confined until the following

_* . morning, and released.. The court held that’ the de- —

féndant was’ not liable’ for false imprisonment because .

not he, but his superior officer, ultimately incarcerated

* the’ plaintif f. In the course of the opinion, the court

recited generally the duty of citizens to cooperate with

‘: the police and added, by way of obiter:

- “A police officer has a right to-make inquiry in a-

_ proper manner of anyone upon the public_streets

at a late hour as to his identity and t occasion _

of his presence, if the surroundings are such as to

- indicate to'a reasonable man that the -public safety

demands such identification.” = Cal.App. at-16-

d. ;.

The last-quoted phrase was used to describe the circum- ;

stances under which police officers can detain and ques-

tion a person upon the streets. The court was not enun-

ciating the. basis for an arrest, although under all of

- the circumstances present in the case, including the

equivocal answers of the plaintiff, the officers may

have had probable cause to believe that the plaintiff

had committed a felpny. The court did not suggest

that silence or evasive answers. to police annie, nie

was itself a crime.

The court in Gisske relied,, in part, upon the dictum

of Miller v..Fano,™ stating: “It is the duty of every

citizen, when called upon, to give all information in

134 Cal 103, 106-7 (1901).

_ his possession to the proper officers of the law as to

persons connected with crimes.” S |

The dictum in Miller was merely a restatement of the

apothegm that good citizens have a duty to a

with the police in the investigation and prevention o

_ crime. Cooperation, truly voluntary; has been encour-.

aged upon the part both of persons who are suspected:

of crime® and of persons who are not. The imposi-..

tion of penal sanctions to compel co-operation by those’

who are not involved in a crime is very rare.* The

_ imposition of criminal penalties to coerce testimonial co- .

operation by those who are suspected of crime has not

.

been attempted, except in California Penal Code Section °

647 (e), because .of the extreme difficulty of framing. .

an effective statute which does not exceed constitu.

tional bounds. he

The other. case upon which Professor Sherry relied

to support Clause [2] was People v. Simon, decided by

the California Supreme Court in 1955.77 -Two youths,

Simon and his minor friend, were observed by a police

officer walking in a warehouse district. shortly after

*The court held that a private citizen could not be liable

for false imprisonment simple b@tause he made an identifica-

tion at the police officer’s request, later used by police to effect

the arrest of plaintiff, the wrong man. - a "A ee

**See, eg. People v. Cotter (1965) 63 Cal2d 386; 396:

People v. Michael (1955) 45 Cal2d 751, 753, 754

26One of these rare. instances of compelled cooperation is

California Penal “Code Section 150, making it a misdmeanor

for 2 mam over 18 -years -old. to refuse to join a posse

comituius, or to neglect requested aid in effecting an arrest.

For a discussion generally of sanctions to compel a

with the policy by those not themselves suspected of crime,

see, Note, “Criminal Law—Requiring Citizens to Aid a Peace

Officer,” 14 DePaul L.Rev. 159 (1964). .

2745 Cal.2d 645..

—)

ten ‘o'clock at night. Simon’s friend was carrying a

‘bottle, apparently containing an alcoholic beverage.

The officer, without any inquiry of either of the boys,

searched both of them and found upon Simon a mari-

.juana cigarette, for possession of which Simon was

prosecuted. The court held that Simon’s arrest and

search were illegal. On these facts alone, the officer

did not have probable cause to arrest or search, either

on the ground that a misdemeanor was being committed

in the officer’s presence, or on’ the ground that a felony

had: been committed. Justice Traynor interposed a cau-

tious. dictum, which ene the first step in the de-

velopment of the stop-and-inquire . and stop-and-frisk

law which has evolved i in California: ,.

“There is, of course, nothing unreasonable in. an

officer’s questioning persons outdoors at night

(Gisske v. Sanders, supra, 9 Cal.App. 13, 16-17;

People v. Exum, 382 Ill. 204 [47 N.E.2d 26,

60]; People v. Henneman, 367 Ill, 151 [10 N.E.

2d 649, 650] ; ; United States v. Jankowski, 28

F.2d 800, 802; see also M organ v. United States,

159 F.2d 85° 86-87; Kaiser v. United States, 60

F.2d 410, 412-413; Strogen v. United States, 60

F.2d 483; Brinegar v.. United States, 338 U.S.

160, 178 [69 S.Ct. 1302, 93 L.Ed. 1879], Burton,

}., concurring) and it is possible that % some

circumstances even a réfusal to answer would in

the light of other evidence, justify an arrest... ,

' [I]n some circumstances an officer making such

an inquiry might be justified in running his

—45— =. ; 4

hands over a Person’s clothing to protect himself

from an attack with a hidden weapon. . . .”8

[Emphasis added: ] | i

By the emphasized ‘language Justice Traynor meant

that silence of a suspect, taken together with all of the

_ other circumstances iri a particular case, might con-

stitute reasonable cause’ to believe that a felony had

been committed, or a misdeameanor was being com-

mitted in his presence, justifying arrest without a’ war-

rant and an incidental search. He ‘did. mot mean or

imply that-a suspect’s silence: could itself be made.a

crime for which the person could be arrested. :

Two things are apparent: first} there was no clear-

* cut authority in California supporting the right of -.

the police to detain a suspicious person for investiga-

tion at the time Professor Sherry drafted Clause

[2]; and second, the authority which ‘did exist did not :

purport to validate any duty on the part of the ‘SUSpi-,

cious person to respond to the interrogation. Nothing |

in ‘the cases upon which Professor Sherry relied even

suggested that the detained person’s failure to cooper-

ate by answering police inquiries was, or could be

made, a crime in the name of vagrancy, or disorderly

conduct, or: any other newly-minted offense. Profes-

sor Sherry’s draft states the right of law enforcement

officers in conducting an investigation in terms of

duties, enforced by criminal sancations, imposed’ upon

those suspected of crime, and thereby confuses. both

rights and duties.

The Interim Committee on Criminal Procedure was

at least partly aware of the frailty of the authority.

upon which Professor Sherry relied, and for that

reason added Clause [3] to the statute. |

"287d. at 650.

History a Clause [3]:

“Tf the Surrounding Circumstances Are Such as -

_ to Indicate to a Reasonable’ Man that the Public

Safety Demands Such Identification.”

The “Committee explained its purpose in adding

Clause [3] to Professor Sherry’s Clauses [1] and [2]:

“Although Professor Sherry sets out a dictum

from Gisske v. Sanders as a justification for the

adoption of his proposed Section 5, we find that

his argument rests only upon the first half of that

dictum.. It not only states that an officer has

. the right to make inquiry in a proper manner of |

anyone upon the public streets. at a late hour as

to his identity and the occasion of his presence,

_ but. goes on to say ‘. . .if the surroundings are

such as to‘indicate to a. reasonable man that the -

public safety demands such identification.” This —

phrase accords with-many-other cases “holding that.

_ probable cause can consist of the refusal to answer —

". questions coupled with other circumstances. There

is no implication that such refusal. alone would —

| justify arrest. [Emphasis in original.] .

“An inconsistent answer, of itself, has hai held

insufficient probable, cause for an arrest for va-

grancy. iCting 0 4 v. Harris (1956) 146 Cal.

App.2d 142. $y

“The committees feels ‘that any requirement that

a citizen answer questions put to him by a police

officer must be made with care. —

“However, in-an effort to combat crime more

effectively, we recommend that Professor Sherry’s

proposed Section No. 5 be adopted with an amend-

a a

ment. In order to make it fit more nearly the _

dictum from Gisske -v, Sanders, upon which it is

based, we recoinmend that the following phrase

_ from that opinion be added: - \ ae,

cate to a reasonable man that the public safety

demands such identification.’ ”™

The Committee’s suggestion “was accepted and, as

passed, the statute combines Professor Sherry’s revi-

sion of subsections 3 and 6 of the former statute as as

Clause [1], his original Clause [2], and the Commit-

tee’s qualifying addendum as Clause [3]. |

_ Stop-and-Frisk Law

Development of Stop-and-Inquire and _f . —

————

It was not until 1963 thatthe stop-and-inquire and

___Step-and-frisk principles were clearly enunciated -in

California. The occasion. was the decision of People

Uv. Mickelson (59 Cal.2d 448). Chief Justice Traynor

Said: © coat 7

“[W]e have consistently held that circum-

- stances short of probable cause to make an arrest

may still justify an officer’s stopping pedestrians

or motorists on the streets for questioning. If |

the circumstances warrant it, he’ may in: self-

Protection request a suspect to alight from an auto-

- mobile or to submit to a superficial-search for

. concealed weapons. Should the investigation then

- reveal probable cause to make an arrest, the offi-

cér may arrest the suspect and. conduttsa reason-

able- incidental search. [Citations omitted.]” (59

Cahed et 50-51.) 5 Oe

SE eaetnEnee

|, 22 Assembly Interim Committee Reports No. 1, p. 18,

. . if the surroundings are such as to indi-

= PING RRR INRIA PERN ORE EER : . Pon

—48—

a7

_ “We do not believe that our rule. permitting.

. temporary detention for questioning: conflicts with —

the Fourth Amendment. It strikes a balance be-

tween a person’ Ss interest in immunity from police

- interference and the community’s interest in law en-

fore fent. _ It wards off pressure to equate rea-

sonable cause to investigate ‘with reasonable cause —-

to arrest, thus protecting the innocent-from the’

risk of arrest when no-more than reasonable in-

vestigation is. justified.” (59 Cal.2d at 452.)*

A year later in People v. One 1960 Cadillac Coupe™

the Supreme Court emphasized that the right of a po-

"lice officer to stop and inquire shall not be arbitrarily

exercised, but that the circumstances justifying in-

quiry must indicate to a reasonable man that some

necessity exists foro police investigation. The restate-_

ment of reasonable cause is a paraphrase of the qualify-

ing language of the. Gisske dictum.

In each of the many decisions following Mickelson,

the stop-and-inquire principles were invoked to vali-

date the use of evidence uncovered during the investi- -

gation either (a) to justify a felony arrest upon

probable cause ‘supplied ‘in whole or in part by the

2°Federal practice forbids temporary detention for ques

tioni Re gy an arrest. E.g., Henry v. United States (1 59)

361 98. See also Wong Sun v. United ae (1963) 371°

USS. 471 1. 7

At least as of 1963, state law coliticer to arrest and search

: has not been obliterated in favor of federal 2 by such de-

cisions as Mapp v. Ohio, supra, 367 U.S.

The conflict between federal and: staté practice is discussed

_. in an article,» Manwaring, “California and the Fourth mene

- ment,” 16 Stan.L.Rev. 318 (1964).

8162 Cal.2d 92, 95-96.

fruits of the preliminary investigation, or €b) to justify

a search and seizure made incident to a felony arrest.? _

Jurisdictions other than. California have attempted i |

. to formulate Stop-and-inquire principles by adopting

statutes authorizing limited detention, short ‘of arrest,

for investigatory purposes, Rhode Island, New Hamp-

shire, and Delaware adopted the Uniform Arrest Act,

_ published by the Interstate Commission on Crime in

1941." The Uniform Arrest Act attempts to -distin-

guish between a_pre-detention arrest and a lawful

arrest. It authorizes police officers to stop, question,

frisk, and deta for two | hours any person abroad

“who he has’ reasonble ground: to suspect. is commit-

ting, has committed or is about to commit a crime.”

- The suspect must: be released at the end of two hours.

- unless there is probable cause to Place him under ar-

_rest:** Decisions ‘construing-the Act, have been incon-

clusive both in respect of its constitutionality and the

81; People v. Machel (1965) 234 Cal.App.2d and the

many cases collected in the footnotes at pp. 43 and 44.

**N.H.Rev.Stat.Ann., c. 594 ~ (adopted 1941) as amended

1965; Del.Code Ann.tit. 11, §§ 1901-1 (1953) (adopted 1951) ; -

R.J. Gen. Laws Ann.tit. 12 ¢. 7 (1956) (adopted 1941),

»/ “The full text of the Act is ‘printed in Warnter, “The Uni:

- form Arrest Act,” 28. Va.L.Rev. 315 (1942). *

Section .2 of the Uniform Arrest Act provides : ;

“(1) A peace officer may: stop any person abroad who he

name, address, business abroad and, whether he is ‘going.

(2) Any person so questioned ‘who fails to identify him-

8F.9., People v. Rogers (1966) 241 Adv Cal App, 478, 480-.

fe .

_* breadth of- power thereby accorded police officers.”

The New York “Stop and Frisk Act” is a variation of

the Uniform Arrest Act, except that the\suspect may

not be. detained if the questioning or frisk does not —

~ give the officer probable cause to arrest.** The con-

' .stitutioriality of the New York law has not been tested.

The California Legislature i in 1957 rejected a proposal

for limited detention and. interrogation patterned. after

the Uniform Arrest Act.”

A further variation and cdilecilticia of Sotiation: for

interrogation is illustrated by the first draft of. the

‘Model Code of Pre-Arraignment Procedure, Sections -

2.01 and’ 2.02. The draftsmen have attempted to

‘distinguish’ sharply the procedure applicable to gen-

eralized investigation, including questioning of wit-

_ nesses, from the procedure. applicable to an investiga-

tion of a person upon whom suspicion has focused. -

If an officer has reasonable cause to suspect ‘that a

person may have committed a crime, he must make.

clear to the person interrogated that such person has no

legal ‘obligation, ‘to respond to the questions. The _

draftsmen’s notes appended to Section 2.02 emphasize

‘that there is no authority to compel cooperation from .

the suspect.** No state has adopted the draft of

the’ Model Code of Pre-Arraignment Procedure. :

"tT he cases are collected aitd analyzed in a Note, “The Law .

of Arrest, Constitutionalit 4 1956) The and Frisk Act,” 59

Bs. Uke Be he Sie ). The Act has beén sharpl

criticized by some el eso, e.g. Foote, “The Fourt

- Amendment: Obstacle or. Necessity in the Law of Arrest,”

' - §1 J.Crim.L., C & P.S. 402 (1960).

36N.Y. Code Crim. Proc. § 180(a) (1964). .

Collings, “Toward Workable Rules of Search and. Seigure—

An Amicus Curiae Brief,” 50 Calif.L.Rev. 421, 434 (1962).

*8Tentative Draft No. 1, Model Code of Pre-Arraignment

Procedure (1966).

wot enn |

Constitutionality ‘of Penal Code Section 647 (e) — -

Clause [1], as we have seen, is a repetition ‘of the

ancient status-vagrancy crime. The words used have

acquired over ‘the years a meaning ‘definite enough to

_ withstand: constitutional attack.” The first clause

- need not detain us long, however, because it is plain

@ that the Legislature did not intend to preserve the

Status crime and that the heart of the Statute is the

second clause, read with the first and third.

>. The second clause makes silence, or articulated re-_

fusal to answer questions, an element of the crime.*

‘The statute does not penalize a. suspect who answers

the questions. If he responds with an exculpatory an-

_swer, he is obviously. not chargeable with violation’ of

_ this or. any other penal statute. If he responds with

_ an incriminatory answer, he may therby implicate him-

self in another crime and Possibly supply probable cause . -

to arrest for that other crime, but he is not charge-

able with the offerise created by this statute. A re-

- Sponse, which is. somehow neither inculpatory nor ex-

culpatory, but merely. unsatisfactory to the police of-

ficer, cannot be deemed a refusal to respond within the _

‘meaning of the statute, because the legislative history

_ makes clear that the Legislature did not intend to |e-

_ galize arrests on suspicion. The third claise. was in-.

serted to prevent an officer’s arresting a person solely

°Cf. In re Cregler ED 56 Cal.2d 308, 311, 312; In re

Huddleson (1964) 229 1.App.2d' 618; 625. prt :

: € situation must’ be distinguished from those cases in

which the refusal is not a refusal to testify but is a refusal to

Cooperate in a.non-testimonial procedure or test, ¢.9., Schmerber

v. California (1966) 384 .U‘S. 757 (blood test) ; People v.

Sudduth (Dec. 23, 1966) ........ Cal.2d -- (refusal to submit to

breathalyzer test) ; People v. Elis (Dec. 23, 1966) ........ Cal.2d

bent (voice identification test). “

e

‘

9 .

oll Aatitedimenet mane)

| because the arresting officer was not subjectively. satis-_

fied with the suspect’s answer. Unfortunately, the Com-

mittee did. not “explain how it. expected its qualifying

wh :

addendum to prevent arrests on _ Suspicion or to sur--- .

: vive tonstitutional attacks grounded on the Fourth and

Fifth Amendments. 3

There appear to be only three oossible. constructions —

of Clause [3]:-first, the officer must have reasonable

~ ‘cause to arrest for the very offense ‘created by Sec- oe

-tion 647 (e) before ‘the officer has the right to in- —

terrogate the. suspect and penalize him for failure to Be

: respond ; second, the officer must’ have reasonable. cause

to arrest for an offense other than an offense created”

by Section 647 (e) before the right to interrogate and

the duty to respond arises; or third, the, officer must -

have reasonable cause to-detain and question for pur-

: poses of investigation, but less than enough cause to

arrest for any offense, before the failure to ‘respond

cotistitutes a crime. .

The first construction alah insurmountable dif- .

ficulties in application. and constitutionality. The ele-

ments of the offénse would: thereby be circular : the

officer could not require response to questions until the

« questions had been asked without response. This is true

because the third clause is itself an element of the

- corpus of the offense. Loiteringor wandering, standing

alone, is not the crime, nor does loitering or wander-

ing, standing ‘alone, constitute ‘reasonable causé to -be-

‘lieve that the crime stated by Section*647 (e) is being

committed’ ih the officer’s ‘presence. The statute re-

quirés the elements of each clause’ to coincide to effec-

tuate the legislative intent. Moreover, the statute as

thus ‘construed would violate the Fifth. ‘Amendment. If

“a

, oo 4 ok

the ‘officer has probable cause to believe that the sus-

..\". pect. is violating Section 647 (e) at the time he com-

- completes the crime stated by Section 647 (e). His

‘silence is unmistakably incriminatory. The Suspect can-

not be penalized for exercising his constitutional right | -

to silence. (Miranda v. Arizona (1966) 384 U.S. 436, |

Albertson: v. Subversive Activities Control Board

_ (1965), 382 U.S. 70; Russell. v. US. (9th. Cir.

1962) 306 F.2d 402.) It is, of course, totally pointless

for the officer to inform the suspect, that he has a

-~ constitutional right to. remain silent when his. silence. is

.- the final element in this crime.“ OH Otit. aera

_ The. second. possibility—reasonable cause to believe

” that an offense other than violation of 647 (e) has

_ been committed—fares no better than. the first. By

able ‘cause to believe’ that the suspect’ has committed or

is committing a crirhe before the duty to respond arises.

The generalized inveS8tigation is over? and ‘the suspect —

has a constitutional right to silence, which cannot be

defeated by penalizing his silence criminally. ° -

. The third possibility ‘is that Clause [3] means that

~ the officer must have reasonable cause to detain and

question for purposes of investigation, but: instifficient

cati$e to arrest.for any-offense. This construction most

: “Cf. People v. Simmons (1946) 28 Cal:2d 699, 716: Of

what avail is it to warn a defendant that he need not reply to.

police questioning unless he wishes to, and that anything he may"

_ Say my be used against him, if, in the event he is"unres sive

under.this admonition, hi¥ silence or equivocal reply, is later

_ turned against “him as indicative of a consciousness of guilt ?”

ae :

" 4) ae

cate , ; 4 —

_ Mences interrogation, the. accusatory stage is ‘néces- *. |

sarily reached, since the Suspect’s -failuré’ to respond - eee

468; Griffin v. California’ (1965) 380 U.S. 609; cf:

a definition, the interrogating. officer-must have reason- — .

snes — 2,

closely accords with the intent of the draftsman of

the statute, but it founders on both. the Fourth and

- Fifth Amendments.

The Fourth Amendment problem sidieres 3 in 1 the stat-

ute because the statute as thus interpreted legaJizes

an arrest upon grounds other than reasonable or prob-

able cause. The Committee failed to perceive the im-

portant distinction between (1) reasonable cause jus-

tifying detention short of arrest for the puprose of in-

vestigation only, and (2) reasonable cause to’ justify

an arrest. The Gisske and Simon dicta refer to rea-_

sonable.cause to justify detention, not arrest. When

“reasonable cause justifying ‘detention is itself made an.

element of a crime, the effect is to convert grounds for

_ detention into grounds for arrest, a result which the

Supreme Court in Simon and later in Mickelson and —

One 1960 C. adillac ¢ ‘oupe ‘was at considerable pains

to avoid.”

~ Our. Supreme Court has preserved . the distinction -

because the standard of reasonable cause to detain and

“inquire is a lesser standard than probable or reason-

able cause ‘to arrest. If Feasonable cause to detain and

reasonable cause to arrest were based ‘upon identical

standards, the addition of stop-and-inquire principles

would be pointless. If a lesser standard to detain and

‘inquire is converted into cause for arrest, the effect

. is to defeat the more stringent. requirements of prob-

. able catise to arrest—a result which ‘cannot be ore

42People v. Simon, supra, 45 Cal.2d ‘a 650; People v. tine

- 1960 Cadillac Coupe, supra, 62 Cal. 2d at 95-96: Gisske v..

Sanders, supra, 9 Cal.App. at 16-17.

The same distinction has been seein maintained in

drafting . statutes authorizing detention and questioning for ‘in-

vestigatory purposes, such as the Uniform Arrest. Act’ and its

' variations, ee supra.

/ i ro

with the probabi¢ cause standard imposed ttpon the law

of arrest by the Fourth Amendment.

If we attempt to avoid the F ourth Amendment dif-

| ficulties by raising the standards of detention to the

° level of probable cause to arrest, we immediately en-

counter :the identical Fifth Amendment . problems to

which the first two constructions have succumbed. . *,

We theréfore conclude that Section 647 (€), how-

_ €ver construed, is unconstitutional on its face.®- ©

at Nothing in our decision striking down’ Penal Code

_ Section 647 (e) should be interpreted as reflecting ad-

versely upon the right of ‘law enforcement officers to

- Stop and inquire or to stop and frisk as those prin-

- ciples have: been repeatedly ‘stated by the appellate

courts of this State. The constitutional. infirmity of

this statute lies, not in a statement of rights of law

enforcement officers, but in the imposition of penal

‘sanctions to compel performance of a duty to respond

testimonially by one. upon whom suspicion of* crime

- . has clearly focused. : | | ae

The judgment is affirmed.

Hufstedler

Judge

Iconcur: — |

Aiso, | a

Presiding Judge

, a . + . :

‘8We have noted the dictum ‘to. the coritrary in People v. ~

Bruno (1962) 211 Cal.App.2d Supp. 855, 863, but we canny

~ agree with it. © a ek pb ce hc ioe, 7

"oo

APPENDIX C.

m Order Denying Hearing After Judgment by ‘the

Court of Appeal, 2nd a ve Division 2, Crim.

No. 13090. nova

In the Supreme Court of | the State of California,

in Bank.

MeCoy, J.

People V. Weaw.

Filed Jul 26 196/, William I. Sullvan, Clerk. By.

S. F. Deputy.

_ Resporident’ s petition for hearing DENIED.

Traynor —

Chief Justice

a ee ee,

A)

= ik

APPEN DIX D.

Constitutional Provisions and Statutes Involved.

1. The pertinent provisions of the First Amend-

ment to the United States Constitution are: “Con-

gress shall ees no law . 7 ENS the freedom of

‘ speech, .

2. The ie provisions of the F ourth Amend-

ment to the United States Constitution are: “The right

of the people to be secure in their persons, . . . against

rsiraniaienee searches and seizures, shall 1 not be vio-

lated, .

3. The pertinint provisions of the Fifth Amend- |

ment to the United States Constitution are: “No per-

‘son shall: . . be compelled i in any criminal case to be a

witness against himself, nor be deprived of life, liberty

or property, without due process of law;.. .”

4. The pertinent provisions of the Sixth Amend-

ment to the Constitution of the United States are: “In

all criminal prosecutions, the accused shall . . . have

. the Assistance of Counsel for his defense.” :

5. The pertinent provisions of the Ninth. Amend--

ment to the Constitution of the United States are:

“The enumeration in the Constitution, of certain

rights, shall not be construed to deny’ or disparage

others retained by the people.”

6. The pertinent provisions of the Fourteenth

_ Amendment to the Constitution of the -United States

-

are: . No State.shall make or enforce any law

which shali abridge the privileges or immunities of

citizens of the United States; nor shall any State de-

Prive any. person of life, liberty, or sroperty, without

due process of law;...”

are

—08--

_7. The pertinent provisions of California Penal. ©

Code Section 647(e) are: “Every person who Commits

any of the following acts shall be guilty of disorderly

conduct, a misdemeanor: “. . . (e) Who loiters or wan-

ders upon the streets or from place to place without

apparent reasonor business and who refuses to iden-

tify himself and to account for his presence when re-—

quested’ by any- peace officer.so to do, if the surround-

ing circumstances are such as to indicate to a reason-

able man that the public safety demands such identifi-

cation.” (effective 1961, Cal.,-Stats. ¥1961, c. 560,

p. 1672). 3 |

*